Many Americans were upset to learn this month that the National Security Agency is recording cellphone conversations in the United States, violating its mandate to operate only outside of the country.

According to an internal agency audit that was leaked to the Washington Post, almost all of these incidents involved what the NSA calls “roamers”: “Roaming incidents occur when valid foreign target selector(s) are active in the U.S. … Roamer incidents are largely unpreventable, even with good target awareness and traffic review, since target travel activities are often unannounced and not easily predicted.”

Debate over the “roamers” has focused on a narrow legal concern: Did the NSA overstep its authority by continuing to record the conversations of foreign targets once they arrived in the United States? The NSA’s chief compliance officer assured reporters that the agency erased the recordings as soon as it identified them as domestic calls.

In other words, the NSA labeled these foreigners as enough of a threat that it recorded their conversations. Then it let them in the country. Then, when the NSA realized they were in the country, it stopped recording their conversations. Really?

This may be an unfair characterization — the NSA could well have passed along these cellphone numbers to the FBI or the Department of Homeland Security, which have their own surveillance programs.

Still, the legal issues notwithstanding, should we be worried about foreign intelligence targets “roaming” around the United States?

Not too much, actually. The NSA’s audit counted 1,904 “roaming” incidents in a single year (April 2011-March 2012). (See chart above left.) We don’t have leaked documents for other time periods, but there have probably been thousands more “roamers” before and since.

Yet none of these “roamers” has carried out a terrorist attack, and it seems unlikely that any have even been arrested for terrorism-related plots, so far as I can find.

I’ve identified eight individuals charged with terrorism plots – all thwarted in their early stages — who entered the U.S. since the NSA’s major surveillance programs were authorized in 2007, but there is no indication in their indictments that they were targets of NSA surveillance prior to arrival. Four were teenagers with no record of militancy (Khalid Ali-M Aldawsari, Sami Samir Hassoun, Mohammad Hassan Khalid, Quazi Mohammad Rezwanul Ahsan Nafis). Three entered the U.S. as refugees (Waad Ramadan Alwan, Mohanad Shareef Hammadi, Ulugbek Kodirov), and the remaining individual (Amanullah Zazi) entered the U.S. by claiming falsely to be the son of a U.S. citizen – if they had been under NSA surveillance, U.S. immigration procedures would have blocked their applications.

Even if all eight individuals had been wiretapped by the NSA, they constitute a tiny proportion of the “roamers” wandering around the homeland.

As I’ve repeated for several years, terrorism has not turned out to be a leading threat to public safety, despite the recurrence of occasional violence like the Boston Marathon bomb attacks. Americans have been far more likely to fall victim to murder (more than 180,000 since 9/11) and other forms of violence than to terrorist attacks.

“Roamers” have not put a dent in this tally. Literally thousands of them are considered safe enough to be allowed past immigration officials into the United States.

So why are they being targeted for this level of surveillance?

The primary regulation for NSA targeting is Executive Order 11333, issued by President Ronald Reagan in 1981, which authorizes the NSA to engage in “signal intelligence” — basically electronic eavesdropping — to obtain “information constituting foreign intelligence or counterintelligence” (Section 2.3b). Foreign intelligence is then defined, in a circular fashion, as “all activities that agencies within the Intelligence Community are authorized to conduct pursuant to this Order.” (Section 3.4e).

In the years after 9/11, tens of thousands of foreigners were targeted for NSA surveillance, according to a draft report by the agency’s inspector-general that was leaked to the Guardian earlier this summer.

In recent years, we have learned from other leaked documents, new regulations have expanded the NSA’s activities to include metadata information on Americans, not just foreigners. This has caused an uproar in the United States, with rumblings in Congress to rein in the NSA. Civil libertarians are outraged, and the ACLU has filed suit arguing that the U.S. Constitution has been violated.

But this outrage seems to be limited to eavesdropping on Americans, not on foreigners. One leading group, the Electronic Frontier Foundation, has devoted an extensive webpage to NSA Spying on Americans, but the page says nothing about spying on foreigners. The EFF maintains a separate page on international issues with a subpage on mass surveillance technologies, but that page focuses only on the export of surveillance technologies to authoritarian governments. The U.S. government’s own use of surveillance technologies abroad gets a pass.

Surely the United States is not the only country engaged in signal intelligence. But imagine Americans’ outrage if another government were eavesdropping on American domestic conversations the way the NSA does overseas.

This double standard applies not just to signal intelligence but to many forms of foreign intervention. The United States maintains large-scale military installations surrounding potential rivals, such as Russia and China, but will not tolerate foreign military presence near its own borders.

That’s what the Monroe Doctrine declared two centuries ago. Even before the United States was able to project much force overseas, the United States refused to accept rival militaries in the Americas.

That’s what the Cuban Missile Crisis was about — the United States refused to accept Soviet nuclear weapons near American shores, although U.S. had nuclear weapons stationed near Soviet borders.

American law-enforcement engages in a similar double standard. According to United States law, it is legal for American officials to kidnap foreigners on foreign soil and bring them to the U.S. for trial. The Supreme Court affirmed this explicitly in United States v. Verdugo-Urquidez (1990) by concluding that the Fourth Amendment of the U.S. Constitution — which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” — referred only to Americans.

These reflections may seem far afield from the question of cellphone surveillance, but they are all of a piece. The NSA’s “roamers” offer a striking glimpse into actions taken by the United States government overseas that Americans would never tolerate at home. If America wants to stand for rights around the world, let’s start by respecting rights around the world.

9 Responses

Back in the early 1970s I was able to legally monitor mobile telephone conversations with equipment I purchased a Radio Shack for less than eighty dollars. The frequencies were often very close to police channel communications.

Cell phone conversations are not subject to any extensive Fourth Amendment or federal statutory protections as land lines are as there is no reasonable expectation of privacy in radio wave transmissions.

I learned via practicing criminal law that police agencies often can obtain private cell phone information very easily and can also easily and legally monitor these communications – which they often do.

The National Security Agency had monitored telephone communications of Sirhan Sirhan’s defense counsel Abdeen Jabara – including attorney-client communications – that resulted in a decade-long legal battle led by the ACLU in United States District Court in Detroit. That action was filed in 1972 and only a few months after Jabara succeeded in persuading the California Supreme Court to vacate Sirhan’s death sentence.

The FBI, CIA, and NSA were all identified as participants in the surveillance. Jabara, a University of Michigan graduate, was never charged with a crime and the case made landmark law on the legality of federal surveillance and the right of the citizen to access of investigative files of himself under the Freedom of Information Act. The case was eventually settled with the government.

The scope of NSA surveillance today does not surprise me given what was disclosed in the Jabara case proceedings during the 1970s and 80s.

The ease upon which cell phone communications can be monitored requires great caution to those who use such communications.

While the deaths in Boston of three people and horrible injuries to many others captured public attention, 5 times as many died in the chemical explosion in West, Texas, with devastating impact on the small town. Yet our appetite for “terror” and the implication that a private business and a complicit state government were instrumental in the West disaster, meant that within a few days the Texas terrorists could breathe freely while those in Massachusetts took on larger-than-life proportions.

I’m still interested in the results of spying on the United Nations. Being it violates international law, can you imagine the fall out if it was China, or Russia, or even Syria spying on the security council. I’m shocked that not only has the media, but the United Nations themselves seemed to swept under the carpet two clear violations of the Vienna Convention. The US should be being sanctioned.

Anyway the Thai newspaper The Nation, did an article on the location of the X-Keyscore facility located in Thailand (I think the only one to do so):

Anyway the Thai government are puzzled at were the location of the X-Keyscore facility is.

“Information and Communications Technology Minister Anudith Nakornthap yesterday said relevant agencies need to investigate the report about the existence in Thailand of the X-Keyscore operation”

“According to Twitter’s latest report on information requests from January 1 to June 30, 35 governments made 1,157 requests for user information about 1,697 specific Twitter accounts. The Thai government was not among the 35 that had made the requests. The United States made 902 requests about 1,319 specific Twitter accounts. (link to transparency.twitter.com)”

“The US leads the way with 78 per cent of all requests received. The second-largest number of requests came from Japan with a total of 8 per cent of overall requests, up from 6 per cent in July-December 2012.”

I am assuming other governments are just as pissed of as Thailand, but just keeping it a little more hush, hush.

Interestingly their is a X-Keyscore facility in Southeast China, I think around Guangzhou. Being the spying is probably related to economic espionage you have to wonder whether the resent case against GlaxoSmithKline, and the arrest of British corporate investigator Peter Humphrey, has anything to do with US spying on China and the X-Keyscore facility.

But spying abroad professor, means that the NSA can state with some assurance that the chemical weapons alleged to have been used in Syria were deployed by Assad’s military. They apparently have the a recording of the phone call that officers were alleged to have made in panic about this event. If you want to catch the bad guys in wrong doing overseas then you you have to spy on them. If the good guys get spied on as well and you know the now infamous saying ” if you have nothing to hide then you have nothing to fear” then all is well isn’t it?

All of this spying and our government is supposedly scratching its head over who gassed the Syrians? Now US officials are telling the UN…Listen you don’t need to investigate…we know chemical weapons were used. Case closed.

I just read on Crooks and Liars that a letter was sent to the president urging he launch and attack against Syria. The list of signatures include Joe Lieberman, Karl Rove, Abrams…in other words the same crowd that pushed for the debacle known as the Iraq war.

Silver Frost

“As I’ve repeated for several years, terrorism has not turned out to be a leading threat to public safety, despite the recurrence of occasional violence like the Boston Marathon bomb attacks. Americans have been far more likely to fall victim to murder (more than 180,000 since 9/11) and other forms of violence than to terrorist attacks.”

And we are more likely to be struck by lightening than by a terrorist.

When will we have “the war on lightening“?

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